The Quoddy Tides

Eastport, Maine

2009 Jan 23

Sovereignty issues complicate

Coast Guard's LNG endorsement

by Edward French

While the U.S. Coast Guard has issued a letter of recommendation on the suitability of the waterway that liquefied natural gas (LNG) ships would travel to the proposed Downeast LNG facility in Robbinston, the Waterway Suitability Report prepared by the U.S. Coast Guard Captain of the Port Sector Northern New England does outline areas of concern, particularly regarding the roles of the Canadian government and the Passamaquoddy Tribe.

In the section titled, "International and Sovereignty Considerations," the report states that the Canadian government considers all of Head Harbour Passage to be internal waters of Canada and therefore the international right of innocent passage does not apply. The U.S. government's position is that vessels headed to or leaving from U.S. ports on the waters of Passamaquoddy Bay have the right of innocent passage under the United Nations Convention on the Law of the Sea (UNCLOS). However, because the U.S. is not a party to the convention, since the U.S. Senate has not yet provided necessary approval, "the United States is not subject to, nor can the U.S. make use of, the compulsory dispute settlement provisions of UNCLOS," the report notes.

Following an initial participation in technical discussions with the U.S. Coast Guard, the Canadian government has curtailed further participation in the review process for the Downeast LNG facility. The report states, "The eventual involvement and cooperation of Canada's maritime, environmental and public safety authorities are paramount to ensure the safety and security of the waterway."

The report also examined the rights and concerns of the Passamaquoddy Tribe and issues relating to sovereignty. In response to the Coast Guard's request for information regarding Passamaquoddy sovereignty issues, Downeast LNG submitted a legal brief rebuffing the tribe's claims, stating, "The Passamaquoddy tribal fishermen lack sovereignty or any other special fishing or sustenance rights over the waters through which LNG carriers will transit to and from the Downeast LNG facility."

"The intricacy of, and overall sensitivity to the sovereignty issues within the region have complicated" the review process, the report states. Of significant concern would be the Captain of the Port's "jurisdictional authority to enforce risk reduction measures, such as safety/security zone enforcement, and/or how to quantify environmental risks and related potential impacts to hallowed hunting and fishing grounds and sacred ceremonial sites, if in fact Passamaquoddy sovereign rights prevail."